SZCVQ v Minister for Immigration

[2004] FMCA 489

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVQ  v MINISTER FOR IMMIGRATION [2004] FMCA 489

MIGRATION – Application to set aside order of Registrar – where Registrar dismissed substantive application after applicant twice failed to attend directions hearings – whether Court should exercise its discretion to set aside order – where application before RRT identical to other applications before the Tribunal – whether Tribunals’ finding that the applicant was not a credible witness was open to it on the evidence – whether the applicant was afforded procedural fairness by the Tribunal.

Federal Magistrates Court Rules 2001, r 16.05(2), 21.02(2)(a)

Dranichnikov v Minister for Immigration (2003) 197 ALR 389

Applicant: SZCVQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 546 of 2004

Delivered on: 28 July 2004

Delivered at: Sydney

Hearing date: 28 July 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in respect of these proceedings today in the sum of $250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

3. These costs are in addition to the fixed costs of $1,000.00 ordered by Registrar Hedge.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 546 of 2004

SZCVQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The matter before me today is an application under Rule 16.05(2) made by the applicant to vary or set aside an order made by Registrar Hedge on 9 July 2004 dismissing the substantive application.  The application had been dismissed by the Registrar because the applicant had not attended at the directions hearing or at the previous directions hearing.

2. In order for me to exercise my discretion to set aside the order of the Registrar it is necessary for me to consider the reasons given for the applicant's non attendance and then to consider the utility of allowing the applicant to have his case heard.  In doing this it is necessary to look at the application itself and the grounds and reasons for decision produced by the Tribunal. 

3. Although the applicant has explained the reason for his non attendance at the second hearing on affidavit he has made no attempt until today to indicate why he did not attend the first hearing.  He told me that he had been ill but he has produced no medical certificate or any other supporting evidence.  The applicant was late for the second hearing because he says that he was involved in a motor vehicle incident.  I see no reason to disbelieve him.

4. The problem which the applicant faces is that I cannot see any utility in allowing him to further agitate this claim.  The reason why the applicant’s claim to have a well founded fear of persecution for the Convention reason of political opinion failed was because the Tribunal indicated to him that it had received two almost identical applications and two almost identical background fact statements from other persons who had arrived in the country before the applicant.  At [CB 62] the Tribunal indicated that it put this matter to the applicant and suggested that he had fabricated the claim by copying the statements of these other applicants.  The Tribunal did not receive what it considered to be a satisfactory response. 

5. The decision of the Tribunal was therefore fairly and squarely one upon credibility.  The Tribunal’s reason for believing that the applicant's claim lacked credibility was substantial, justified and made clear to the applicant.  There can be no question of a lack of procedural fairness.  It seems to me that the application is not reviewable.

6. Today the applicant tells me that if he is given an opportunity he can prove the matters that he spoke to the Tribunal about.  There are two problems with this.  Firstly, he was given an opportunity but he did not produce such proof before the Tribunal.  As the High Court said in Dranichnikov v Minister for Immigration (2003) 197 ALR 389 per Kirby J at [78]:

   “The function of the Tribunal as of the Delegate is to respond to the case that the applicant advances.” 

7. The second problem with the claim made by the applicant is that he has not since the conclusion of the Tribunal hearing collected any of this evidence in a way that can be produced to the court.  There is no affidavit annexing documents that would go some way towards establishing the facts claimed.  There are no affidavits of witnesses.

8. Finally, the applicant said to me today that he had not been given procedural fairness because the Tribunal hearing was all over in 20 minutes.  At [CB 51] there is a copy of the hearing information form which indicated that the hearing commenced at 10.40 am and finished at 11.25 am, a period of 45 minutes. 

9. In all the circumstances I do not believe this is a case in which I could exercise my discretion under Rule 16.05(2) to vacate the order of Registrar Hedge. The order stands, the application is dismissed. The applicant must pay the respondent's costs in respect of these proceedings today which I assess in the sum of $250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. These costs are in addition to the fixed costs of $1,000 ordered by Registrar Hedge.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  10 August 2004